UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-6248

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROMEO TRINIDAD FLORES, JR.,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

(February 25, 1993)

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Romeo Trinidad Flores, Jr. (Flores)

appeals his conviction of conspiracy to possess with intent to

distribute in excess of 1,000 kilograms of marihuana in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Flores claims,

among other things, that his Sixth Ame ndment rights under the

Confrontation Clause were violated by the admission against him of

grand jury testimony of his codefendant, Oscar Navarro (Navarro),

who did not testify at trial. We agree, and accordingly reverse

and remand for another trial.

Facts and Proceedings Below1 This vehicle was later identified as being registered to

Flores' wife.

2 On May 22, 1990, federal agents established surveillance of a

ranch, abutting the United States border on the shores of Falcon

Lake near the town of Lopeno, Texas, on the suspicion that a large

shipment of marihuana would shortly be brought there from Mexico.

At approx imately 10:00 p.m., agents observed a dump truck travel

south on Highway 83, pull off the highway, turn off its lights, and

enter the ranch on a caliche road by a livestock dipping bath and

a parked Ford Bronco, which had been observed earlier entering the

ranch. After voices were heard in conversation, the two vehicles

proceeded on the caliche road to the banks of Falcon Lake.

At approximately 4:00 a.m., federal a gents observed a red

Chevrolet Lumina travelling north on Highway 83 from Lopeno. 1 The

vehicle stopped near the dipping bath and several persons in the

car were yelling in Spanish toward that area. A man got out of the

passenger side, yelled toward the dipping bath, and reentered the

Lumina, which then made a U-turn and returned towards Lopeno.

Moments later, the Lumina returned with a person sitting on the

passenger-side door frame, ye lling toward the dipping bath area.

The passenger exited the vehicle and the driver turned around and

again drove toward Lopeno. A few minutes later the Lumina

returned, picked up the passenger at the ranch gate, and then went

back towards Lopeno. About five minutes later, the Lumina again

appeared, and, after stopping on the road near the dipping bath,

the vehicle's two occupants could be heard conversing about when

the truck was due to come out. A Bronco exiting the ranch with its2 There was evidence at trial that Flores owned horse stables

and an associated exercise track "on the south side" of Highway 16 in the "area that connects U.S. Highway 83 and Highway 16."

3 lights off stopped at the ranch entrance and its occupants appeared

to speak with the occupants of the Lumina. The Bronco then entered

Highway 83, turned on its lights, and drove north towards Zapata.

The Lumina entered the ranch with its headlights turned off and

travelled in the direction of a dump truck before disappearing. A

dump truck later emerged from the caliche road with the Lumina

following beh ind it. The dump truck turned on its lights and

headed north from the ranch's entrance onto Highway 83, and was

followed by members of the surveillance team. Before following in

the dump truck's direction, the Lumina's three occupants exited the

car and closed the gate to the ranch. The Lumina was not followed

by th e agents. About half an hour later, federal agents stopped

the dump truck northeast of Zapata, Texas, on Highway 16 and seized

2,768 pounds of marihuana that it was carrying.

The Lumina was not observed again until about thirty minutes

later, when a patrolman stopped the car twenty to twenty-five miles

north of the ranch, outside of Zapata, Texas, on Highway 16. 2 The

patrolman observed that Flores was driving the car, a passenger was

riding in the front seat, and Navarro was in the back seat. After

searching the car, the patrolman directed Flores to follow him back

to the Zapata police station to pay some outstanding traffic

tickets. Flores did so and then hurriedly left.

About a year later, on April 29, 1991, members of the

surveillance team questioned Navarro at his home about his role in3 The testimony of the agents at a pretrial hearing before the

district court does not explain how Navarro's concerns regarding probation were resolved. At this hearing on August 28, 1991, the following colloquy occurred:

"The Court: Did he ask you for any consideration or anything?

The Witness: Not that I can remember, your Honor. He might've stated what could happen to him, but I just . . . I don't remember that happening. I don't remember him really asking us anything. He was worried about his mother and he said that he wanted to cooperate. He really didn't want anything to go wrong and he was

worried about his mother because his mother had diabetes. So we said, well, by cooperating SQ "

4 Although this statement was admitted at trial, all

references to Flores were deleted.

5 It is not clear whether Navarro was subpoenaed for this purpose, but he was called as a witness by the Assistant United States Attorney, and was brought to the grand jury from his home
by the customs agents.

4 the marihuana shipment. Navarro initially refused to talk, but he

changed his mind when told he was the target of an investigation.

A fter being given his M iranda warnings, Navarro admitted that he

was involved in the shipment. The federal agents then asked him to

accompany them to the customs office. He voiced some concerns

about his legal status because he was on probation for another

offense, but ultimately decided to go with the agents. 3 The agents

then drove Navarro to the customs office where he signed a

statement concerning the details of the shipment. This confession

described Flores as participating in the marihuana conspiracy by

engaging in countersurveillance activity along Highway 83 while the

marihuana shipment was being loaded. 4

On May 3, Navarro testified before a grand jury concerning the

marihuana shipment. 5 He was without counsel, and was questioned by5

the Assistant United States Attorney. Of course, neither Flores

n or his counsel was present. Navarro's grand jury testimony,

echoing his confession in the customs office, incriminated him and

also contained inculpatory statements indicating that Flores

specifically, among others, was involved in the conspiracy. Based

on this testimony, on July 9 Navarro and Flores were charged in a

one-count indictment with conspiracy to possess with in tent to

distribute in excess of 1,000 kilograms of marihuana.

On August 6, the government filed a notice of intent to use

Navarro's grand jury testimony pursuant to Fed. R. Crim. P. 12(d).

Flores objected, and during a pre-trial hearing on August 12 argued

that since he and Navarro were being tried together, and since

Navarro had indicated that he would not t ake the stand and would

assert his Fifth Amendment privilege, that therefore the admission

of the grand jury testimony would violate Flores' rights under the

Sixth Amendment's Con frontation Clause. The district court took

this argument under advisement and Flores filed supplemental

objections to the grand jury testimony on August 14. He filed

further written objections and a motion for severance on August 23.

The court sum

marily denied the motion for severance but allowed

Flores to file additional grounds to exclude the grand jury

testimony. On August 27, Flores formally identified specific

objectionable portions of Navarro's grand jury testimony, and the

next day, following an evidentiary hearing, the district court

determined that most of the testimony had particularized guarantees

of trustworthiness bas e d on the circumstances surrounding the6 As to the corroborating evidence, the district court

reasoned as follows:

"The Court: And so, then your SQ well, so his statement would essentially just furnish the link between the
Lumina, as it went into the ranch, and the Lumina as it was stopped thirty minutes later or so.

Mr. Casso [prosecutor]: Yes, sir. And would identify Mr. Flores as the one who was driving

The Court: Okay. But you know, you're going to have independent evidence that he was in fact driving it thirty minutes later.

Mr. Casso: Absolutely.

The Court: With Navarro in the back seat.

Mr. Casso: That's right.

The Court: So, this will just bridge the gap of the thirty minutes?

Mr. Casso: That's right."

The district court also noted that the Lumina's presence at the ranch that evening at and before the time the marihuana truck left the ranch was corroborated by independent evidence.

7 Three portions of Navarro's grand jury testimony concerning Flores remained after the redactions. They consisted of statements that: (1) Flores was driving the Lumina when he picked
up Navarro at the ranch; (2) Flores was not present when the marihuana was physically loaded into the truck; and (3) Flores had contacted Navarro the day before about assisting in the

offense.

6 testimony and on the corroborating evidence implicating Flores. 6

The district court then redacted certain portions o f Navarro's

grand jury testimony and, o ver Flores' objections, allowed the

remaining testimony to be admitte d against Flores as well as

against Navarro. 7 Navarro exercised his Fifth Amendment right not

to testify at trial.

A jury trial involving codefendants Flores and Navarro began8 Flores also complains of the denial of his motion for

severance, in which he alleged no more than that he "intends to call the said Oscar Navarro to testify on his behalf." Neither the motion, nor any showing made by Flores in support of it, met

the criteria of United States v. Rocha , 916 F.2d 219, 232 (5th Cir. 1990), and the district court did not abuse its discretion in denying the motion. Flores makes no challenge to the sufficiency of the

evidence.

9 Flores further asserts that Navarro did not properly invoke his Fifth Amendment right not to testify SQ and hence may not be deemed to have been in any respect unavailable on that

account SQ

because he did not do so personally, on the witness stand, in open court. For the same reason, Flores argues that the district court erred in not allowing him to call Navarro to the stand in the presence of the jury and attempt to question him. Twice during trial (and before Navarro's grand jury testimony was put in evidence), Navarro's counsel advised the district court in open court, outside the presence of the jury, that he had consulted with Navarro (who was then present) and

that Navarro invoked the Fifth Amendment and would not take the
stand (as indeed he did not). The court then confirmed from Navarro personally that he understood this. After the government and Navarro rested, Flores' counsel, in the presence of the jury,
announced "we call the defendant to the stand, Oscar Navarro";

7 on August 28, and the next day both were convicted of conspiracy to

possess with intent to distribute in excess of 1,000 kilograms of

marihuana in violatio n of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(A). On November 6, 1991, Flores was sentenced to twenty

years' imprisonment to be followed by a ten year term of supervised

release, and ordered to pay a fine of $7,500. Flores now appeals

his conviction as serting that the district court erred in, among

other things, admitting Navarro's grand jury testimony. 8

Discussion

Flores complains that his Sixth Amendment rights under the

Confrontation Clause were violated because of the admission against

him of the grand jury testimony of his codefendant Navarro, who

exe rcised his Fifth Amendment right not to testify at trial. 9Navarro's counsel promptly stated that Navarro "would assert his

Fifth Amendment right"; and the district court at once excused the jury and admonished Flores' counsel for his improper conduct. The jury was then returned, Flores' counsel proceeded to call another witness, and the matter was not mentioned again. We

conclude that the district court did not abuse its discretion in determining that Navarro had adequately invoked his Fifth Amendment privilege, notwithstanding that he did not personally utter the magic words or take the stand. As Justice Blackmun observed, "the absence of this formality is not decisive." Lee
v. Illinois , 106 S.Ct. 2056, 2066 n.3 (1986) (Blackmun, J., dissenting). See also United States v. Briscoe , 742 F.2d 842, 846 (5th Cir. 1984). We also reject Flores' claim that Navarro was mentally or emotionally incompetent. Flores points only to testimony of a doctor who stated that, during his court-ordered examination of Navarro nine days before trial, Navarro told him "I was tricked by an undercover agent to say many things that were not true and they were all against me." However, nothing in Navarro's grand jury testimony, or elsewhere in the record, reflects that he was incapable of understanding the questions asked or communicating the relevant material or understanding the obligation to do so
truthfully. See United States v. Saenz , 747 F.2d 930, 936 (5th Cir. 1984).

10 The rule provides in pertinent part that a statement will qualify under this exception if "at the time of its making . . . [it] so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to
be true." Fed. R. Evid. 804(b)(3). This Court has held that a declaration against penal interest satisfies the requirements of
the Confrontation Clause and rule 804(b)(3) if it meets a threepart test:

"(1) The declarant must be unavailable;

(2) The statement must so far tend to subject the declarant to criminal liability that a reasonable person in his position would not have made the

statement unless he believed it to be true; and

(3) The statement must be corroborated by circumstances clearly indicating its trustworthiness."

8 Flores asserts that Navarro's grand jury testimony did not have the

required indicia of trustworthiness. Such indicia must be shown in

order to admit a statement under the hearsay exception provided by

Fed. R. Evid. 804(b)(3). 10United States v. Sarmiento-Perez , 633 F.2d 1092, 1101

(5th Cir. 1981).

9 The district court reviewed Navarro's testimony to determine

its admissibility against Flores under t his Court's decision in

United States v. Vernor

, 902 F.2d 1182 (5th Cir.), cert. denied

,

111 S.Ct. 301 (1990). The V ernor cou rt held that in the case of

custodial confessions, "[ a] close examination of all the

circumstances surrounding the making of the statement is required

in order to determine whether it so contravenes the declarant's

penal interest that a reasonable person in his position would not

have made the statement accusing a third person unless he believed

it to be true." I d. at 1187-88, quoting Sarmiento-Perez

, 633 F.2d

at 1102. In addition to reviewing the circumstances surrounding

the confession, the district court here relied on independent

evidence that placed Flores in the car thirty minutes after it was

observed leav ing the ranch and thus corroborated that portion of

Navarro's grand jury testimony that placed Flores at the scene of

the conspiracy. Based on these findings the district court

concluded that the testimony had sufficient indicia of reliability

to be admitted against Flores as a declaration agains t penal

interest under Fed. R. Evid. 804(b)(3). The district court's

analysis was consonant with Vernor, which held that corroborating

evidence is to be considered S Q i n addition to the circumstances

surrounding the statements SQ to satisfy the requirement of

reliability under rule 804(b )(3) and the requirement of

trustworthiness under the Confrontation Clause. Vernor , 902 F.2d11 In so ruling, the Supreme Court appears to have departed

from the plurality ruling in Dutton v. Evans , 91 S.Ct. 210
(1970). In Dutton , four members of the Court stated that a court evaluating the reliability of hearsay evidence could look to corroborating evidence as one factor in determining the reliability of the hearsay. Id. at 219.

10 at 1188. However, the Supreme Court has since held that

corroborating evidence may not be considered in determining whether

a statement may be admitted under the Confrontation Clause where,

as here, the statement is presumed to be unreliable. I daho v.

Wright , 110 S.Ct. 3139 (1990). 11

The Wright Co u rt, in applying the Confrontation Clause's

requirements to Idaho's residual hearsay exception, not ed that

there existed two basic framework s for analyzing the

constitutionality of hearsay exceptions as set forth in O hio v.

Roberts

, 100 S.Ct. 2531 (1980). Generally, under both systems, the

Confrontation Clause requires the prosecution to show that the

declarant is unavailable and that the statement bears adequ ate

indicia of reliability. I d. at 253 8-39. If the hearsay falls

within a firm ly rooted hearsay exception then reliability may be

presumed. Id. at 2539. However, if the hearsay is not part of a

firmly rooted exception, then the required indicia of reliability

must be shown from "particularized guarantees of trustworthiness."

Id. The W right Court held that these "particularized guarantees of

trustworthiness" include only the relevant circumstances "that

surround the making of the statement and that render the declarant

particularly worthy of belief." W right

, 110 S.Ct. at 3148.

Corro borating evidence may not be considered because it "would

permit

. . . bootstrapping on the trustworthiness of other evidence12 This test excludes corroborating evidence because the

rationale for allowing exceptions to the hearsay rule is "that the statement offered is free enough from risk of inaccuracy and
untrustworthiness, so that the test of cross-examination would be a work of supererogation." Wright , 110 S.Ct. at 3149 (quoting from 5 J. Wigmore, Evidence § 1420, p. 251 (J. Chadbourne rev. 1974)). In other words, evidence may only be admitted under an exception to the hearsay rule if it is "so trustworthy that adversarial testing would add little to its reliability." Id. The hearsay rule supports the values of the Confrontation Clause because it focuses only on the trustworthiness of the declarant in making the particular statement and does not seek independent verification of the statement through corroborating evidence. Hearsay consisting of a statement of declarant that is not trustworthy is inadmissible whether or not independent evidence shows that the statement is in actuality true or false.

13 Three circuits have held that all statements within the declaration-against-penal-interest exception are inherently reliable since it is a "firmly rooted" exception to the hearsay

rule. United States v. York , 933 F.2d 1343 (7th Cir. 1991); United States v. Seeley , 892 F.2d 1, 2 (1st Cir. 1989); United States v. Katsougrakis , 715 F.2d 769, 775 (2d Cir. 1983).

11 at trial." Id. at 3150. 12

The Wright court determined that Idaho's residual exception to

the hearsay rule was not a firmly rooted exception so that evidence

may only be admitted under that exception if it had "particularized

guarantees of trustworthiness." Similarly, a confession by an

accomplice inculpating a defendant that is being offered as a

declaration against penal interest is not a firmly rooted

exception. Although some statements that fall within the

declaration-against-penal-interest concept may be inh erently

reliable, the concept itself "defines too large a class for

meaningful Confrontation Clause a nalysis." L ee v. Illinois

, 106

S.Ct. 2056, 2064 n.5 (1986). Therefore, each class of statements

tha t falls within the exception must be analyzed to determine

whether it is inherently reliable. 13 Confessions of accomplices orHowever, Katsougrakis was decided before Lee , and Seeley simply

relies on Katsougrakis . These opinions cannot be viewed as authoritative given the holding in Lee that the types of statements under this exception defy such categorical analysis.

The York court distinguished Lee by holding that it applied only to "'a confession by an accomplice which incriminates a
criminal defendant,'" and that the Lee court had not held that such statements were not within a firmly-rooted exception but only decided that they were presumptively unreliable. Id. at 1363 n.4 (quoting Lee , 106 S.Ct. at 2064 n.5). The York court concluded that the issue of whether the exception for declarations against penal interest was firmly rooted was still open, and then held that it was a firmly rooted exception. Id

. We decline to follow this reasoning because exceptions are firmly rooted precisely because such exceptions contain statements that are presumptively reliable. Therefore, Lee precludes a finding that the exception could be firmly rooted. The York court implicitly recognized this outcome when it noted that, although the exception is firmly rooted, a district court will still need to determine the reliability of a statement against interest that inculpates a third party in order to allow the statement to be admitted under the exception. Such an instruction contradicts the Supreme Court's holding that firmly rooted exceptions are presumptively reliable and require no further determination of reliability. Wright , 110 S.Ct. at 3147. York also seems to

contradict Morrison v. Duckworth , 929 F.2d 1180, 1181 n.2 (7th Cir. 1991) (holding that statements inculpating a third party "do not come within an established hearsay exception"). Moreover, as
noted in the text, infra , from an historical perspective we doubt that a broadly read exception for declarations against penal interest can fairly be described as "firmly rooted" despite some relatively old instances of its application in England.

12 codefendants are "presu m ptively unreliable as to the passages

detailing the defendant's conduct or culpability be cause those

passages may well be the product of the codefendant's desire to

shift or spread bl ame, curry favor, avenge himself, or divert

attention to another." Id. at 2064.

Navarro's g rand jury testimony is a confession of a

codefendant, and it may only be admitted against Flores if the

relevant circumstances "that surround the making of the statement

. . . render the declarant particularly worthy of belief." W right

,14 The government correctly observes that Navarro's grand jury

testimony, although a confession, was not a custodial confession. Certainly, grand jury questioning will usually "take place in a setting wholly different from custodial police interrogation." United States v. Mandujano , 96 S.Ct. 1768, 1778 (1976). However, although Navarro was not arrested when the testimony was elicited, he was a target of the federal investigation, he had been given his Miranda warnings, and he had already given a

custodial confession that could serve as the basis for his
arrest. All of these facts were known by Navarro and the prosecuting attorney when he elicited Navarro's testimony. In these circumstances, we are inclined to view the grand jury confession as not vastly more trustworthy than the preceding

custodial confession. This Court has observed that the fact that the challenged hearsay was grand jury testimony was not decisive in favor of its trustworthiness because, "although given under oath, [it] is not subjected to the vigorous truth testing of cross-examination."

United States v. Thevis , 665 F.2d 616, 629 (5th Cir. 1982). If an oath (and a noncustodial, formal setting) were a sufficient guarantee of trustworthiness, "Congress could have dispensed with the cross-examination requirement codified in Rule 804(b)(1)."

United States v. Fernandez , 892 F.2d 976 at 981 (11th Cir. 1989). Further, here, as is frequently the case in such instances, much of Navarro's grand jury testimony was elicited through leading questions (and included hearsay), factors that tend to lessen reliability. See United States v. Gonzalez , 559 F.2d 1271, 1273 (5th Cir. 1977). Simply put, accomplice or codefendant grand jury testimony, in and of itself, does not exhibit sufficient indicia of reliability. See United States v. Garner , 99 S.Ct. 333, 335 (1978) (Stewart, J., dissenting from denial of certiorari) ("That the evidence was first given before a grand jury adds little to its reliability. In grand jury proceedings, the ordinary rules of evidence do not apply. Leading questions and multiple hearsay are permitted and common. Grand jury investigations are not adversary proceedings. No one is present to cross-examine the witnesses, to give the defendant's version of the story, or to expose weaknesses in the witnesses' testimony."). We concede that generally grand jury testimony is likely to be somewhat more trustworthy than custodial confessions, and

hence is in this respect arguably more consistent with recognized exceptions to the hearsay rule. However, grand jury testimony, as compared to custodial confessions, will also usually have a closer nexus to building a particular case for trial as distinguished from mere general investigation of criminal activity or identification of suspects for apprehension. As such, the use at trial of third-party grand jury testimony implicates core concerns of the Confrontation Clause at least as

much as the use of custodial confessions.

13 110 S.Ct. at 3148. 14 However, the district court considered15 We note that the government likewise urges that we uphold

the admission of Navarro's grand jury testimony in significant part because of the external corroborating evidence.

14 corroborating evidence in addition to the circumstances surrounding

the making of the statement. 15 This situation resembles U nited

States v. Gomez-Lemos

, 939 F.2d 326 (6th Cir. 1991), where two coconspirators' grand jury testimony was used against the defendant

at trial. The testimony was admitted as a declaration against

penal interest, the co-conspirators having made themselves

unavailable by evoking their Fifth Amendment privilege not to

testify. The Court held, under W right

, that the district court

committed error in admitt ing the grand jury testimony because it

" found significant in its reliability analysis the fact that the

hearsay testimony of co-conspirators Bar raza and Osorio was

corroborated." I d. at 332. Since the district court, contrary to

Wrig ht , considered corroborating evidence in support of its

decision to admit Navarro's testimony, its decision may not stand.

The question remains whether we should regard V ernor as

binding precedent for the admissi bility of this character of

evidence even where, per Wright

, external corroborating e vidence

may no longer be considered in the trustworthiness calculation. We

decline to ascribe such a continuing precedential effect to Vernor

.

We are not persuaded that the re sult in Vernor itself, or the

general pro-admissibility approach of that opinion, would have been

the same absent the comfort facto r of external corroborating

evidence, a factor that under Wright is no longer available in16 Vernor recites that "[t]he district court found that Fred's

statements implicating Gary were corroborated by other evidence that clearly indicated the trustworthiness of the statements" and that "[t]he portions of Fred's statements implicating Gary are also sufficiently corroborated by other circumstantial evidence of Gary's guilt." Id . at 1188. The latter statement introduces a four paragraph description of the corroborating evidence. Id

. Following this description, the opinion concludes by stating:

"In the light of all of the foregoing
circumstances, we conclude that the trustworthiness of Fred's statements is clearly established by corroborating circumstances, and that there are sufficient indicia of reliability to satisfy the requirements of the confrontation clause. We therefore hold that the district court did not err in admitting

Fred's statements." Id. at 1188-89.

15 calibrating trustworthiness. 16 Moreover, we believe that the type

of evidence here considered should be deemed inadmissible in light

of the historical under pinnings and core values of the

Confrontation Clause, and what we view as the infringement of those

values in this general context by the evolutionary expansion of the

concepts of unavailability and declaration against penal interest.

Certainly, the Confrontation Clause does not serve as an

impregnable barrier to the admission of any and all hearsay

evidence. The theory behind the hearsay rule is that "the many

possible sources of inaccuracy and untrustworthiness which may lie

underneath the bare untested assertion of a witness can best be

brought to light and exposed, if they exist, by the test of crossexamination." 5 Wigmore , supra , § 1420 p. 251. Based on this

theory, confr ontation is not always required if the statement is

"so trustworthy that adversarial testing would add little to [its]

reliability." W right

, 110 S.Ct. at 3149. The Confrontation Clause

couples with this trustworthiness requirement the additional17 Fed. R. Evid. 804(a), which defines unavailability for

purposes of all the several hearsay exceptions that are
conditioned on it and are set out in rule 804(b), includes the situation where the defendant "is exempted by ruling of the court on the ground of privilege from testifying." Rule 804(a)(1). In

Vernor we relied on this provision and several earlier decisions of this Court in holding that the co-perpetrator's claim of Fifth Amendment privilege rendered him unavailable as a witness so as to authorize admission of his confession against the defendant.

Id . at 1186. However, in Lee the Court expressly declined to address whether the confessing co-defendant Thomas who declined to testify at trial was unavailable. Id ., 106 S.Ct. at 2061. Even the four dissenting Justices in Lee , who would have admitted Thomas's confession against his co-defendant, recognized that

there were ways the State might well have been able to procure Thomas's live testimony:

16 safeguard that necessity must be shown before the statement can be

admitted. R o berts , 100 S.Ct. at 2538-39. In order to prove

necessity, the Supreme Court has held that the Confrontation Clause

requires a showing of unavailability in order to admit hearsay such

as confessions. S ee United States v. Inadi

, 106 S.Ct. 1121, 1125-

1129 (1986); Roberts, supra ; Mattox v. United States

, 15 S.Ct. 337

(1895). However, circumstances that constitute unavailability have

been enlarged over time. As noted by one court:

"Originally, the test of unavailability was satisfied only if the declarant was deceased at the time

of trial. As the exceptions to the hearsay rule grew, the

concept of unavailability also expand ed, and forms of unavailability other than death were recognized as sufficient to satisfy the test of necessity. Illness, insanity, absence from the jurisdiction, and supervening incompetency by virtue of interest have all been held to satisfy the unavailability requirement. The unavailability principle has been expanded to include a

witness who, by the exercise of privilege, refused to testify." N aylor v. Gronkowski

, 9 Ill. App. 3d 302, 306-
07, 292 N.E.2d 227, 229-30 (1972).

Such an expansion was at least in part a salutary development since

unavailability, in a practical sense, may occur in severa l forms

besides the demise of the dec larant. 1 7 However, the courts have"For example, the State could have offered Thomas a

favorable sentencing recommendation, or the opportunity to plead guilty to a lesser offense, in exchange for his testimony against petitioner. Alternatively, the State could have tried Thomas separately and granted him immunity from the use of his inculpatory testimony against petitioner. . . . Measures of this kind, however, entail significant costs." Id . at 2067 (Blackmun, J., dissenting).

17 generally not con sidered the effects of the expansion of

unavailability as they interact with other evolving legal concepts.

As with the concept of unavailability, the exception for

declarations against interest has greatly expand ed from its

historica l roots. In England, although statements against penal

interest may on occasion have been admitted in the distant past,

the courts rule d in the mid-nineteenth century against the

existence of such an exception. Sussex Peerage Case , 11 Cl. & F.

85, 110 (1844); Davis v. Lloyd , 1 C & K. 276 (1844); Papendick v.

Bridgwater

, 5 E. & B. 166, 180 (1855). In the United States,

common-law hearsay exceptions existed for statements made against

pecuniary or proprietary interes t, but no exception existed for

declarations against penal interest. 5 Wigmore , supra , § 1476 p.

352-58. Defendants who were attempting to use declarations by

third parties as evidence in their favor sought to have this

exception recognized, but this attempted common-law expansion was

rejected by the Supreme Court in Donnelly v. United States

, 33

S.Ct. 449 (1913).

The Donnelly court considered whether t he confession of a

t hird party exculpating the defendant should be admitte d as

evidence. Id. at 459. The Court determined that it should not,18 And, at least until recently, most courts agreed that a

codefendant's hearsay admissions could not be used against a defendant. 4 Wigmore , supra , § 1076 p. 157 (concerning "the rule in regard to the admissions of a codefendant in a criminal case ; here it has always been conceded that the admission of one is receivable against himself only").

18 because although a recognized exception to the hearsay rule existed

concerning declarations against interest, "it is almost universally

held that this must be an interest of a pecuniary character . . .

In this country there is a great and practically unanimous weight

of authority in the state courts against admitting evidence of

confessions of third parties . . . ." I d. at 459-60. D onnell y

also relied on Sussex and on Justice Marshall's opinion in Queen v.

Hepburn

, 3 L.Ed. 348 (1813), which observed, "The danger of

admitti ng hearsay evidence is sufficient to admonish courts of

justice against lightly yielding to the introduction of fresh

exceptions to an old and well-established rule; the value of which

is felt and acknowledged by all." Id. at 350. 18

However, such an exception would be eventually recognized as

predicted in Justice Holmes' famous dissent in Donnelly :

"There is no decision by this court against the

admissi bility of such a confession; the English cases

since the separation of the two countries do not bind us;
the exception to the hearsay rule in the case of declarations against interest is well known; no other

statement is so much against interest as a confession of

murder; it is far more calculated to convince than dying
declarations, which would be let in to hang a man; and

when we surround the accused with so many safeguards

. . .; I think we ought to give him the benefit of a fact
that, if proved, commonly would have such weight." 33

S.Ct. at 461 (Holmes, J., dissenting) (citations
omitted).

Cast in these terms, such admissions against penal interest did not

implicate the Sixth Amendment because they would be statements of19 For a detailed, scholarly history of the rule's language,

see Sarmiento-Perez , 633 F.2d at 1094-95.

19 third parties offered by an accused in order to exonerate himself.

Criticism for not recognizing an exception for statements against

penal interest focused on this perceived injustice.

This criticism was muted by the promulgation of the Federal

Rules of Evid ence in 1975, which provided that a declarant's

statement against interest may be admitted as an exception to the

hearsay rule where such statement "so far tended to subject the

declarant to civil or criminal liability." Fed. R. Evid.

804(b)(3). 19 This rule recognized the general reliability of

statements made by a declarant that were opposed to his own penal

interest. However, echoing the concerns of the D onnelly majority,

the rule treats statem ents by a third-party exculpating the

defendant as requiring "corroborating circumstances clearly

indicat[ing] the trustworthiness of the statement." Id.

Although rule 804 does not specifically address the situation

where the third-party declarant's confession contains statements

inculpating the defendant, the Supreme Court has always viewed such

st atements as inherently suspect. D ouglas v. Alabama

, 85 S.Ct.

1074 (1965) (admission of nontestifying previously tried

codefendant's confession violated the defendant's rights under the

Confrontation Clause); Bruton v. United States

, 88 S.Ct. 1620

(1968) (admission of nontestifying jointly tried codefendant's

confession with a limiting instruction s till violated the

defendant's rights under the Confrontation Clause). The rules

advisory committee notes to rule 804(b)(3) also recognize this20

inherent unre liability in positing that "a statement admitting

guilt and implicating another person, made while in custody, may

well be motivated by a desire to curry favor with the authorities

and hence fail to qualify as against interest." W est's Federal

Criminal Code and Rules 287-88 (1991 rev. ed.).

The relatively recent recognition of declarations against

penal interest as an exception to the hearsay rule by the Federal

Rules of Evidence would seem to counsel against a headlong rush to

broadly embrace the exception as providing a sufficient substitute

for cross-examination and personal confrontation in cases of the

present kind. We recognize that statements which adversely

implicate the penal interest of the declarant alone for many years

have b een widely recognized as normally reliable and, where the

declarant is unavailable, have usually been admitted in evidence in

federal and most state courts. S ee E. Clearly, McCormick on

Evidence § 278 (3d ed. 1984). Arguably, such statements may be

deemed a "firmly rooted" exception to the hearsay rule under the

Lee formulation. On the other hand, even generally objectionable

statements in which the declarant adversely implicates not only his

own penal interest but also that of another may be made under

circumsta nces that both suggest reliability and do not seriously

invade the intended protections of the Confrontation Clause, such

as statements made to a personal acquaintance in a noninvestigatory

context where the setting suggests no motive to speak falsely.

This distinction seems to be recognized by t he rules advisory

committee's reference to statemen ts made "to an acquaintance."

West's Federal Criminal Code and Rules at 288 (advisory committee20 It appears that this Court might have already reached such a

conclusion in Sarmiento-Perez . There, we held that "the

custodial confession of an unavailable declarant lacks those indicia of reliability that would render it admissible in evidence against a criminal defendant within the hearsay exception provided by Rule of Evidence 804(b)(3)." 633 F.2d at 1104. Moreover, at least one respected treatise has interpreted Sarmiento-Perez as holding "that the fact of custody alone, with its attendant likelihood of motivation by a desire to curry favor with the authorities, bars a finding that the statement was against interest and requires exclusion." E.
Cleary, supra , § 279 p. 826. However, Sarmiento-Perez's broad language was ignored by the Vernor court, which chose to interpret that decision as merely requiring a case-by-case

assessment of such statements. Vernor , 902 F.2d at 1187-88.

21 notes to rule 804(b)(3)). C f. United States v. Triplett

, 922 F.2d

1174, 1178, 1182 (5th Cir. 1991) (statement to neighbor). Such

statements might well fall into the Lee category of those shown to

have "particularized guarantees of trustworthiness."

It appears to us, however, that there is another category of

statements against penal interest that should generally be regarded

as inadmissible under the Confrontation Clause, particularly where

the declarant's unavailability is due simply to invocation of the

Fifth Amendment in response to actual or potent ial prosecution,

namely statements accusatory of another taken by law enforcement

personne l with a view to prosecution. 2 0 Such statements have two

characteristics that together make them inherently unreliable: (1)

the declarant makes accusatory statements that inculpate another;

and (2) these statements are made to nonundercover law-enforcement

personnel after the commission of the offense. In that generic

situation there always exists the strong possibility that the

declarant has the "desire to shift or spread blame, curry favor,

avenge himself, or divert attention to another." L ee
, 106 S.Ct. at21 Justice Thomas argued that preventing "trial by affidavit"

was, from an historical perspective, both the core purpose and

22 2064. It is precisely in these circumstances that crossexamination, the "greatest legal engine ever invented for the

discove ry of truth," s ee 5 Wigmore, supra
, § 1367 p. 32, is

preeminently suited to determining the trustwort hiness of a

declarant's statements as envisioned by the fra mers of the

Confrontation Clause.

T he Confrontation Clause reflects "the ancient faith of the

common law, incorporated by the founders in the Bill of Rights,

that live confrontation and cross-examination of witnesses in the

courtroom is the key to finding the truth in a criminal trial."

Gomez-Lemos

, 939 F.2d at 333. As noted by the concurrence in

Gomez -Lemos , "The framers of our Constitution were well aware of

England's unhappy experience with Star Chamber procedures, and the

Sixth Amendment was designed, in part, to f orbid the use of the

most objectionable of these procedures in the cri minal courts of

the United States." I d. at 334 (Nelson, J., concurrin g). Such

objectionable procedures included sworn ex parte depositions used

against defendants in criminal cases. Coke, Fourth Institute,

Chapters 5 and 64. The Confrontation Clause was developed to

"prevent depositions or ex parte affidavits, such as were sometimes

admitted in civil cases, being used against the prisoner in lieu of

a personal examination and cross-examination of t h e witness."

Mattox , 15 S.Ct. at 339; s ee also California v. Green

, 90 S.C t

.

1930 at 1934 (1970); White v. Illinois , 112 S.Ct. 736, 746 (1992)

(Thomas, J., dissenting). 21the furthermost extent of the protection provided by the

Confrontation Clause, and that the Confrontation Clause should not require exclusion of dissimilar sorts of hearsay, whether or not within a "fairly rooted" exception to the hearsay rule.

Justice Thomas would hold that the "Confrontation Clause is implicated by extrajudicial statements only insofar as they are
contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 747. This view, so far as it would narrow the protections of the Confrontation Clause, was rejected by the Court in White

.

22 Although Craig notes that "the face-to-face confrontation requirement is not absolute" and may be modified "where . . .

23 The hearsay rules operate in civil as well as criminal

proceedings, and may be invoked by the government as well as by the

citizen. But the Confrontation Clause applies only in criminal

prosecutions and protects only the accused. Its "lineage . . .

traces ba ck to the beginnings of Western legal culture." C oy v.

Iowa

, 108 S.Ct. 2798 at 2800 (1988). Moreover, "'the Confrontation

Clause guarantees the defendant a face-to-face meetin g with

witnesses appearing before the trier of fact,'" Maryland v. Craig

,

110 S.Ct. 3157, 3162 (1990) (quoting Coy

, 108 S.Ct. at 2800),

"witnesses who confront him at trial, upon whom he can look while

being tried." C oy at 2801. The purpose of confrontation is not

solely a function of conventionally explainable enhanced

reliability, for in this respect the clau se "serves ends related

both to appearances and to reality," Coy at 2801, has a "strong

symbolic purpose," and responds to "'something deep in human nature

that regards face-to-face confrontation between accused and accuser

as "essential to a fair trial in a criminal prosecution."'" C raig

at 3164 (quoting Coy at 2800, quoting P ointer v. Texas

, 85 S.Ct.

1065, 1068 (1965)). 22necessary to further an important public policy and . . . the

reliability of the testimony is otherwise assured," nevertheless in sustaining the modification there at issue Craig stressed that "the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury and defendant are able to view (albeit by video monitor) the demeanor (and body) of the

witness as he or she testifies." Id . at 3166. Craig also reflects that under the there challenged procedure, the witness's testimony was given in personal face-to-face confrontation with

defendant's counsel. Id . at 3161.

23 We recognize that it likely may do so for purposes of unavailability as defined in Rule 804(a)(1). But, here we deal

with the Confrontation Clause. See Wright at 3146.

24 The use of ex parte depositions is still barred in criminal

proceedings. Depositions may only be taken for a criminal trial if

notice is given to all parties, the defendant is given an

opportunity to be present personally and through co unsel at the

examination, and the scop e and manner of examination and crossexamination are the same as would be allowed at the trial itself.

Fed. R. Crim. P. 15. However, under V ernor
, the substantial

equivalent of an ex parte depos ition may be taken, and used at

trial against a defendant, where the pros ecutor procures a

declarant's grand jury testimony with an eye towards the later

joint prosecution of the defendant and/or the declarant. In the

case sub judice , Navarro's grand jury testimony, derived ex parte

and without the benefit of counsel for either himself or Flores,

comes perilously close to resembling England' s Star Chamber

proceedings. The government's choice of trying Navarro jointly

with Flores in essence guaranteed that Navarro would be unavailable

because he would invoke his Fifth Amendment privilege. The

government, in effect, created its own unavailable declarant. 23 The

d istrict court allowed this testimony into evidence against both25

defendants because it adversely implicated Navarro's penal interest

and the district court was satisfied with its trust worthiness.

However, in the area of codefendants' confessions to law

enforcement authorities that implicate another, this should

rarely SQ if ever SQ be the case due, among o ther things, to their

inherent unreliability. Lee , 106 S.Ct. at 2062.

The Supreme Court has never allowed the admission aga inst a

defendant of a codefendant's hearsay inculpatory statements to law

enforcement authorities, although it has suggested that

theoretically such hearsay could be admitted in appropriate

circumstances. C ruz v. New York

, 107 S.Ct. 1714, 1719 (1987); Lee

,

at 2065. But that suggestion should not drive us to allow a

cod e fendant's confession to law enforcement authorities to be

admitted against the defendant merely because the district court is

able to fairly re cite a litany of factors and conclude that the

particular confession has "sufficient indicia of reliability." In

Vernor

, the factors surrounding the making of the stateme nt that

we re relied on to demonstrate its trustworthiness were: (1) the

declarant took, without attempting to minimize, full responsibility

for his role in the offense; (2) nothing indicated that the

declarant made the statements to avenge himself or to curry favor

with th e authorities; (3) the authorities who procured the

statements testif ied and were cross-examined at trial concerning

the circumstances and contents of the statements; (4) no promises

or plea bargains were made with the declarant; (5) the statements

were made voluntarily; (6) the declarant was fully informed of his

Miranda rights; and (7) the offense was still fresh in the24 As previously observed (see note 16, supra, and accompanying

text), Vernor also relied, in its ultimate assessment of the trustworthiness of the statement, on external corroborating

evidence.

26 declarant's mind. 902 F.2d at 1188. 24

While the presence of these factors (as opposed to their

opposites) doubtless renders a given confession more reliable than

it would otherwise be, we are not persuaded that it substantially

eliminates any reasonable possibility that the third party

inculpatory portions of a confession to law enforcement personnel

are unreliable. As to the first factor, a declarant must

incriminate himself in order to fit within the exception in the

first place. Whether such incriminating statements describe the

declarants' full role in the offense will rarely be determined from

the confession alone. Taking on the full blame for a minor role in

an offense, such as claiming to be a mere courier in a drug

conspiracy, does little to demonstrate trustworthiness because the

declarant still has the motive to shift the blame to others so as

to receive a lesser penalty. In certain instances this concern

might be resolved by other evidence, but Wright does not allow such

evidence to be considered. The second factor views the a bsence of

evidence showing improper motives as indicating trustworthiness.

However, statements by suspects t o law enforcement officials

inculpatory o f third parties are excluded because of the

presumpti on that such motives exist, and the absence of evidence

does not remove this presumption. L ee
, 106 S.Ct. at 2064. The

third and fourth factors, though helpful in tending to indicate

that the statements are not made in response to prior express25 As noted in Gomez-Lemos , the presence of a plea agreement,

even after the defendant has been convicted, also would not serve

as an indicia of trustworthiness because the declarant would have a strong desire to curry favor with the government and divert attention to another in the "hopes that the government will make favorable recommendations to the sentencing judge." 939 F.2d at 333. Even after sentencing, these motives may exist because "the government still possesses influence regarding the security level and location of the prison where the [declarant] is to be

incarcerated." Id.

27 inducements such as a plea bargain or other promise, do little to

show that the declarant does not desire to curry favor with the

authorities in the perhaps mistaken hope that he will receive some

favorable consideration

. 25 Nor do they tend to negate a motive to

avenge. The fifth and sixth factors, that the declarant made the

statements voluntarily and with Miranda warnings, will generally be

present when a confession is taken, and were present in Lee . The

Lee court gave them no weight because they do not bear on whether

the declarant's confession was free of the motive to mitigate the

declarant's role in the offense. L ee
, 106 S.Ct. at 2064. The last

factor, making the confession shortly after the offense, does

little to illuminate the declarant's motive.

If one suspected of a particular offense confesses to the

investigating authorities and implicates others, under the abovereferenced Vernor factors that confession, including its

accusations against the o thers, could generally be admitted as

substantive evidence against all in a joint trial. In that

context, the combined expansion of two generally benign evidentiary

concepts SQ

unavailability and declarations against interest SQ results

in sanctionin g evidence that has historically been viewed as

generically suspect and violative of values at the very core of the26 And the declarant's trial silence is not procured by the

defense. See Gomez-Lemos , 939 F.2d at 334 n.3; Thevis , 665 F.2d

at 632-33.

27 Our approach in instances fitting within this classification is general and categorical, rather than calling for or being dependent on a case-by-case examination and weighing of particular factors or circumstances surrounding the statement and
the declarant (either those of Vernor or otherwise). The old saw has it that lawyers and judges "never say never." Pending further guidance from the Supreme Court, we do not presently have occasion to pass on whether there might ever be some extremely unusual case within this genre where the trustworthiness of the statement (grand jury testimony or the like) and the "costs" of procuring the declarant's testimony are both so extraordinarily high that, when viewed together with other special circumstances, consideration of a possible exception to the general rule of inadmissibility might be warranted.

28 Confrontation Clause. Where the government has the means to

procure the declarant's trial testimony, 26 the fact that there will

often be "significant costs" ( see Lee at 2067, Blackmun J.,

dissenting) in its doing so should not override one of our oldest

and strongest legal traditions and the very ess ence of the

Confrontation Clause, namely the protection against conviction on

the basis of third party accusations made in ex parte confessions

to law enforcement or prosecutorial authorities, where there is no

opportunity for the defendant to cross-examine and personally

confront SQ

or for the trier of fact to observe SQ the declarant. 27

Conclusion

We hold that the district court's admission of Navarro's grand

jury testimony as substantive evidence against Flores, over Flores'

objection, violated Flores' rights under the Confrontation Clause.

Although the question is a very close one and not free from

doubt, we are also unable to conclude that this error was harmless.

Accordingly, Flores' conviction is reversed and the cause is29

remanded for a new trial.

REVERSED and REMANDED